24CA0490 Peo v Gilligan 09-17-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0490 Arapahoe County District Court No. 23CR1166 Honorable Joseph Whitfield, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Bernard J. Gilligan, Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE GROVE
Freyre and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 17, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kirstiana Perryman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Bernard J. Gilligan, appeals the judgment of conviction entered after a jury found him guilty of menacing with a weapon. We affirm.
I. Background
¶2 A reasonable jury could have found the following facts based on the evidence presented at trial.
¶3 Gilligan told his friend — the victim — that he believed her daughter’s boyfriend was trying to steal Gilligan’s identity. The daughter’s boyfriend lived in a unit above the victim’s home, and Gilligan had noticed unauthorized transactions on his credit and debit cards linking back to that address. Gilligan also knew a woman was involved but was unsure who she was.
¶4 A few weeks later, Gilligan slept on the couch at the victim’s home. At some point early the next morning, the victim noticed that he was no longer on the couch. After she used the restroom, he returned, startling her. She told him, “Oh, you scared me,” and Gilligan responded, “You should be scared.” The victim, thinking Gilligan was joking, replied sarcastically, “Oh, I’m terrified;” but then she noticed that Gilligan had changed his clothes and was wearing black gloves, a Kevlar bulletproof vest, and a black top with
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a hood that he had pulled over his head. She also saw that he was holding a twelve-inch serrated knife that looked like a machete.
¶5 The victim testified that Gilligan accused her of being involved in the scheme to steal his identity. She also said that he charged at her and then cornered her, holding the machete over his head with one hand and choking her with the other. Gilligan stopped after the victim’s dogs charged him, but when he swung the machete at the dogs, the victim stood between him and the dogs to protect them. The victim testified that the attack frightened her and that she believed Gilligan “was going to chop [her] head off.”
¶6 The victim’s daughter, who was in her boyfriend’s unit above her mother’s home at the time, heard the commotion and went to make sure everything was okay. She witnessed the tail end of the altercation — including seeing the victim up against the wall and Gilligan with the machete — and she helped get the dogs out of the room. She then called the police. When officers arrived, they found Gilligan in his car with the machete and arrested him. Gilligan later admitted to police that he had entered the victim’s home with the machete and had swung it toward the dogs.
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¶7 Gilligan was charged with menacing with a weapon, and after a trial, the jury found him guilty as charged. The trial court initially sentenced Gilligan to four years in community corrections; however, he was denied placement, so he was resentenced to two years in the custody of the Department of Corrections.
¶8 Gilligan now appeals, arguing that (1) the court violated his right to a fair trial and impartial jury by denying his request for a mistrial; (2) the prosecutor committed misconduct; and (3) the cumulative effect of these alleged errors requires reversal.
II. Motion for Mistrial
¶9 Gilligan argues that the court violated his right to a fair trial and impartial jury by denying his motion for a mistrial after a witness testified that she had been informed that Gilligan worked as a “hitman.” We disagree.
A. Applicable Law and Standard of Review
¶ 10 “A mistrial is warranted when the prejudice created by improper testimony renders the trial unfair to the other party.” Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 463 (Colo. App. 2003). But because a mistrial is a drastic remedy, the court should resort to declaring one only if the prejudice cannot be
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remedied by other means. Smit v. Anderson, 72 P.3d 369, 374 (Colo. App. 2002). Before declaring a mistrial, a court should weigh “the value of a cautionary instruction and the nature of the inadmissible evidence.” People v. Pernell, 2014 COA 157, ¶ 24 (citing People v. Vigil, 718 P.2d 496, 505 (Colo. 1986)), aff’d on other grounds, 2018 CO 13. The court should also consider the circumstances that led to the improper testimony, including whether it was intentionally elicited. See id. at ¶ 25.
¶ 11 The trial court is best situated to evaluate any adverse effect that improperly admitted evidence might have on a jury. People v. Ned, 923 P.2d 271, 274 (Colo. App. 1996). Thus, absent an abuse of discretion, we will not disturb a trial court’s denial of a motion for a mistrial. Id. A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or is a misapplication of the law. Pernell, ¶ 30.
B. Additional Facts
¶ 12 As he was previewing the contents of the security camera footage for the jury during his opening statement, defense counsel said, “You’ll also see Mr. Gilligan begin to change. And he changes, because he’s getting ready to go to work. He changes into a
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bulletproof vest, which is something that he puts [sic] for the work that he does.”
¶ 13 Later in the trial, the police officer who responded to the 911 call testified about her interactions with Gilligan, including that Gilligan was wearing a bulletproof vest when she contacted him. At the end of her testimony, the jury submitted a two-part written question: “What does the defendant do for a living that requires a Kevlar vest? Why was it retained as evidence?” The prosecutor did not object to asking the first part of the question but said that he thought the officer would not know the answer. Defense counsel objected “based on personal knowledge and relevance.” The court decided to ask the witness about Gilligan’s occupation, prompting the following response from the officer: “[The victim] informed me that he was a hitman.” Defense counsel immediately objected. The court sustained the objection and instructed the jury “to disregard that question and the answer thereto.”
¶ 14 Shortly thereafter, defense counsel moved for mistrial on due process grounds, arguing that the officer’s “statement taint[ed] the jury to the point where[,] even with an instruction given by the [c]ourt, that is still in their heads that now . . . Mr. Gilligan is a
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hitman . . . with no evidence supporting that at all.” The prosecutor countered that defense counsel had “put the jury . . . in a curious posture” by asserting in his opening statement that Gilligan had donned the bulletproof vest “for the work that he does” without further elaboration. Defense counsel responded that there was “no logical relation between what was said in our opening statement to the point where [the officer] can state that she heard that Mr. Gilligan was a hitman.”
¶ 15 The court denied the motion for a mistrial. After concluding that the question was not improper and noting that everyone had appeared “surprise[d]” by the answer, the court pointed out that it had sustained the objection, told the jurors that they could not consider the answer, and stated that it was “going to have to assume that [the jurors were] going to follow [its] instruction.”
¶ 16 During deliberations, the jury submitted another question about Gilligan’s occupation: “During opening statement, the lawyer of the [d]efendant said that the defendant needed body armor for his job. What is his job?” The jury also asked, “Why is [the victim’s] criminal record fair game? But not Mr. Gilligan if he has one?” The court declined to answer either question, but defense
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counsel renewed his motion for a mistrial, arguing that the officer’s reference to Gilligan being a “hitman” was the only evidence that could have suggested to the jury that Gilligan had a criminal record. The court denied the motion.
C. Analysis
¶ 17 Gilligan argues that the officer’s testimony that he was a hitman was inadmissible and was so prejudicial that any remedy short of declaring a mistrial was insufficient. Assuming without deciding that the officer’s statement was improper,1 we conclude for three reasons that the court did not abuse its discretion by denying the motion for a mistrial.
¶ 18 First, the court reasonably concluded that a curative instruction could remedy any prejudice. The court sustained defense counsel’s objection immediately and instructed the jurors to disregard both the question and the answer. And the fact that the
1 The People only obliquely address the admissibility of the officer’s
statement in their appellate briefing, leading Gilligan to argue in his reply brief that they have conceded the issue. This argument, however, overlooks the fact that the court sustained defense counsel’s objection to the officer’s testimony and instructed the jury to disregard both the question and the officer’s answer. Thus, the key question is not whether the testimony was improper, but rather whether the testimony warranted a mistrial.
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jurors asked a very similar question during deliberations — which the court declined to answer — suggests that they in fact heeded that instruction. Indeed, there would be no reason to ask about Gilligan’s job for a second time if the jurors recalled and credited the officer’s “hitman” testimony. “Because there was no evidence to the contrary, we presume that the jury understood and heeded [the court’s] instructions.” People v. Dunlap, 975 P.2d 723, 743 (Colo. 1999).
¶ 19 Second, the officer’s testimony that the victim had called Gilligan a “hitman” was “fleeting,” People v. Salas, 2017 COA 63,
¶ 12 (noting the limited prejudicial impact of “fleeting references to a defendant’s alleged criminal history”); unintentionally elicited, see People v. Goldsberry, 509 P.2d 801, 803 (Colo. 1973) (holding that a mistrial was required in part because the prosecutor intentionally elicited the prejudicial information); and — because it did not tie Gilligan to any specific criminal acts — constituted a somewhat “ambiguous reference to evidence of [Gilligan’s] criminality,” People v. Lahr, 2013 COA 57, ¶ 24. See also People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984) (a single, unelicited, nonspecific reference to the defendant’s past criminal acts did not require a mistrial).
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¶ 20 Third, although the jury asked again about Gilligan’s occupation and criminal history during deliberations, it did so in a notably different context, signaling that the questions were not prompted by the officer’s testimony. Specifically, the question about Gilligan’s occupation explicitly concerned defense counsel’s reference to Gilligan’s “work” in his opening statement. And the follow-up question about Gilligan’s criminal history was conditional, asking why the victim’s record was “fair game” but Gilligan’s record — “if he has one” (emphasis added) — was not.
¶ 21 We are also unpersuaded by Gilligan’s argument that the prejudicial impact of the officer’s statement was exacerbated by the prosecutor’s reference to the bulletproof vest in closing argument. The prosecutor never referenced the officer’s statement or otherwise implied Gilligan was a hitman. Instead, he argued that Gilligan put on body armor before entering the house to protect himself from retaliation and because he wanted to scare the victim. This was proper commentary on the evidence admitted at trial. See People v. Samson, 2012 COA 167, ¶ 31 (“Prosecutors may comment on the evidence admitted at trial and the reasonable inferences that can be drawn therefrom.”).
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¶ 22 Accordingly, the court did not abuse its discretion in denying Gilligan’s request for a mistrial.
III. Prosecutorial Misconduct
¶ 23 Gilligan contends that the prosecutor engaged in misconduct during voir dire and closing argument. We disagree.
A. Standard of Review and Applicable Law
¶ 24 When reviewing claims of prosecutorial misconduct, we engage in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we determine whether the conduct at issue was improper based on the totality of circumstances and, second, if any misconduct warranted reversal under the applicable standard of review. Id. Whether a prosecutor has engaged in misconduct is an issue within the trial court’s discretion, People v. Rhea, 2014 COA 60, ¶ 42, and where, as here, plain error review applies because the defense did not object at trial, we reverse only when an error was “obvious and substantial,” such that it “so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction,” Hagos v. People, 2012 CO 63, ¶ 14 (citations omitted).
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¶ 25 “The purpose of voir dire examination is to enable counsel to determine whether any prospective jurors are possessed of beliefs which would cause them to be biased in such a manner as to prevent the counsel’s client from obtaining a fair and impartial trial.” People v. Collins, 730 P.2d 293, 300 (Colo. 1986). Trial courts generally afford counsel wide latitude in conducting voir dire. See Smartt v. Lamar Oil Co., 623 P.2d 73, 76 (Colo. App. 1980) (“[C]ounsel must be given considerable latitude to make [voir dire] examination in good faith . . . .”). A prosecutor engages in misconduct during voir dire when he intentionally misstates the law or uses voir dire to present factual matter that he knows will not be admissible at trial. People v. Krueger, 2012 COA 80, ¶ 50.
¶ 26 During closing arguments, the prosecutor may argue facts in evidence, draw reasonable inferences from those facts, and discuss the law on which the jury has been instructed. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). As in voir dire, a prosecutor has wide latitude in the language and style of closing argument, Rhea, ¶ 46, but must stay within ethical bounds to not mislead or unduly influence the jury, Domingo-Gomez, 125 P.3d at 1049. In determining whether a closing argument was improper,
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we consider the language used, the context of the statements, the strength of the evidence, and whether the prosecutor repeated the misconduct. People v. Lovato, 2014 COA 113, ¶ 64. “Prosecutorial misconduct in closing argument rarely constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37.
¶ 27 So-called “golden rule” arguments — those that ask jurors to imagine themselves in the victim’s position — are impermissible at all stages of a trial, except sentencing. See People v. Rodriguez, 794 P.2d 965, 973 (Colo. 1990); People v. Dunlap, 124 P.3d 780, 809 (Colo. App. 2004). “Such arguments are improper . . . because they encourage the jury to decide the case based on personal interest and emotion rather than on a rational assessment of the evidence.” People v. Munsey, 232 P.3d 113, 123 (Colo. App. 2009).
B. Additional Facts
¶ 28 During voir dire, the prosecutor asked prospective jurors if they had been victims of menacing. One juror who said he “previously had experience with menacing” described it as “very awkward” and “very depressing” because it had been his son who menaced him. The prosecutor asked the same juror if he could explain his understanding of menacing, and the juror described
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how, in his son’s case, his son “literally lost his temper to a point where he did grab the butcher knife out of the drawer in the kitchen and came at [the juror].” The prosecutor then said that “[i]n this case,” menacing is “to knowingly place someone in fear of serious bodily injury through either physical actions or threats.”
¶ 29 The prosecutor pursued this theme with several other jurors, asking them if they could think of different examples of behavior that could qualify as menacing, and following up with questions about why threatening someone with a weapon is or should be illegal. The jurors responded by describing what menacing might look like and explaining why the law prohibits individuals from threatening someone with a weapon.
¶ 30 The prosecutor referenced his line of questioning from voir dire in closing argument. After describing how Gilligan told the victim she should be afraid, charged at her with a machete, and put his hands around her neck, the prosecutor said:
If you remember from voir dire, one of the reasons why this is illegal is because of the unpredictability of it. Someone using a weapon, acting in a way towards you with gestures or threats. You have no idea what their intent is, you have no idea why they’re doing what they’re doing.
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¶ 31 Defense counsel did not object to any of the questions during voir dire or to these statements during closing.
C. Analysis
¶ 32 Gilligan now contends the prosecutor committed misconduct “[b]y asking prospective jurors to imagine or recall what it feels like to be the victim of menacing, to define menacing and come up with hypothetical menacing scenarios, and to theorize about why menacing is illegal, and by making comments in closing that harkened back to these improper questions and encouraged the jury to take on the victim’s perspective.” Considered together, Gilligan argues, the prosecutor’s questions and statements amounted to a golden rule argument and misled the jury as to the legal standard for menacing. We disagree.
¶ 33 During voir dire, the prosecutor asked general questions about prospective jurors’ experiences and feelings pertaining to menacing. The jurors’ responses highlighted their own personal experiences, thereby undermining Gilligan’s argument that the prosecutor was asking the jurors to imagine they were victims of the specific crime committed by Gilligan. See People v. Randell, 2012 COA 108, ¶ 92 (“A true ‘golden rule’ argument invites jurors to put themselves in
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the place of the victim and imagine that the defendant wronged them personally, thereby inflaming passions and prejudice.”). Indeed, the prosecutor never instructed the jurors to imagine that Gilligan had “wronged them personally.” Id.; cf. Rodriguez, 794 P.2d at 973 (finding improper use of golden rule argument when the prosecutor asked, “Can you imagine being anally raped by this defendant?”). Thus, the prosecutor did not ask the jurors “to place themselves in the victim’s position” or otherwise “encourage the jury to decide the case based on personal interest and emotion rather than on a rational assessment of the evidence.” Munsey, 232 P.3d at 123.
¶ 34 Gilligan nevertheless argues that the prosecutor’s closing argument was a continuation of voir dire, violating the golden rule. Gilligan highlights how the prosecutor used the generic “you” when stating, “You have no idea what their intent is, you have no idea why they’re doing what they’re doing.” Although the prosecutor’s use of “you” was perhaps ambiguous, the prosecutor did not ask jurors to imagine themselves in the victim’s position. Cf. Dunlap, 124 P.3d at 809 (holding that the prosecutor’s questions to the jury — “Would you want to be moved, particularly in the way [the
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victim] was, with a gun touching your right temple? Do you think you would feel that your risk of harm was being substantially increased?” — were improper). Accordingly, we discern no impropriety in the prosecutor’s reference to voir dire during closing argument. See Domingo-Gomez, 125 P.3d at 1053.
¶ 35 Nor are we persuaded that the prosecutor’s questioning and statements misled the jury as to the definition and legal standard for menacing. Although the prospective jurors’ understandings of what might qualify as menacing varied during voir dire, the prosecutor clarified that menacing requires a defendant “to knowingly place someone in fear of serious bodily injury through either physical actions or threats” — a correct statement of law under section 18-3-206, C.R.S. 2026 — and confirmed with the jurors that they understood the definition. Nothing in the record suggests that the questions and responses confused prospective jurors — who were, in any event, later properly instructed on the law at the end of trial.
¶ 36 In sum, we discern no reversible prosecutorial misconduct.
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IV. Witness Testimony
¶ 37 Gilligan contends that the prosecutor committed misconduct by asking a witness to offer a legal opinion on Gilligan’s guilt. Though he frames this argument in terms of prosecutorial misconduct, the more developed argument focuses on the witness’s testimony, asserting that she usurped the jury’s role by agreeing that Gilligan had “menac[ed]” the victim. Ultimately, it makes no difference whether Gilligan’s argument is viewed through the lens of prosecutorial misconduct or evidentiary error because neither the prosecutor’s questions nor the witness’s testimony warrant reversal under plain error review.
A. Additional Facts
¶ 38 During his redirect examination of the victim’s daughter, the prosecutor asked a series of leading questions (that did not draw an objection) focusing on what she saw during the incident. After the daughter agreed that she saw Gilligan with the machete “in a threatening posture,” the prosecutor asked if it appeared “he was trying to threaten [her] mom.” The daughter responded, “Yes,” and the prosecutor continued:
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[Prosecutor]: And he had the machete in his hand; is that correct?
[Witness]: Yes.
[Prosecutor]: Okay. And the dogs were barking; is that right?
[Witness]: I don’t really recall. I don’t know if it was more or less her yelling and — or it might have been. I can’t say for sure.
[Prosecutor]: Okay. But from that kind of snippet, you definitely saw Mr. Gilligan, in essence, menacing your mom?
[Witness]: Yes.
¶ 39 After the daughter responded, defense counsel stated: “Oh, sorry, Judge. I’m —.” The court then said, “Well, she’s answered the question.” The prosecutor concluded the examination without further questioning, and defense counsel made no further record or request of the court.
B. Preservation and Standard of Review
¶ 40 Gilligan maintains that his argument on appeal is preserved because, “although the court interrupted him midsentence, defense counsel apparently attempted to object when the witness opined on the ultimate issue of Mr. Gilligan’s guilt.” We disagree.
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¶ 41 “To preserve an issue for appellate review, a party must make a timely objection on the record and that objection must be ‘specific enough to draw the trial court’s attention to the asserted error.’” Forgette v. People, 2023 CO 4, ¶ 21 (citations omitted). Although we do not require that parties use talismanic language to preserve an argument for appeal, a party must present the trial court with “an adequate opportunity to make findings of fact and conclusions of law on any issue before we will review it.” People v. Melendez, 102 P.3d 315, 322 (Colo. 2004).
¶ 42 Here, defense counsel did not make an objection that is discernible from the record, much less explain the basis for it, nor did the court rule on one. Accordingly, we review Gilligan’s argument for plain error and will reverse only if the error was both obvious and substantial. See Hagos, ¶ 14.
C. Analysis
¶ 43 The witness’s testimony affirming that she “definitely saw Mr. Gilligan, in essence, menacing [her] mom” was obviously improper. A witness may not usurp the function of the court by expressing an opinion of the applicable law or legal standards. Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo. App. 2000); see also People v.
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Beilke, 232 P.3d 146, 152 (Colo. App. 2009) (“[A] witness may not testify that a particular legal standard has or has not been met.”). Even so, for three reasons, we conclude that reversal is not required because the error was not substantial.
¶ 44 First, evidence of Gilligan’s guilt was overwhelming. See People v. Fichtner, 869 P.2d 539, 543 (Colo. 1994) (“[I]f there is overwhelming evidence to support the conviction, we will not reverse it under a plain error standard.”). The victim testified that Gilligan changed his clothes — putting on a bulletproof vest, a hood, and black gloves — before telling her she “should be scared,” charging at her, grabbing her by the throat, and cornering her while wielding a machete. She explained that she thought Gilligan “actually had intentions of killing [her]” and “was afraid he was going to chop [her] head off.” The victim’s daughter corroborated the victim’s account, testifying that she saw her mother up against the wall while Gilligan held a machete. The daughter further testified that Gilligan looked angry and like he was trying to scare her mom.
¶ 45 Audio of the altercation provides additional support. Though parts are difficult to understand, Gilligan can clearly be heard
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saying, “You should be scared right now,” before there are sounds of commotion and dogs barking. The victim can be heard yelling, “[W]hat are you talking about,” “[D]on’t hurt my dogs,” and “[G]et out,” as well as telling Gilligan to apologize for “putting [his] hands on [her]” and “threatening [her].” The victim’s voice is loud, high pitched, and panicked.
¶ 46 Additionally, Gilligan admitted to police that he had brought the machete inside the victim’s home and swung it toward the dogs. Police also found the machete in Gilligan’s car, and the court admitted footage of the police finding the machete as well as photos of the machete at trial.
¶ 47 Second, the prosecutor’s question and the witness’s answer were brief. See People v. Herrera, 1 P.3d 234, 241 (Colo. App. 1999) (“[P]lain error is not present if the prosecutor’s improper remarks were ‘few in number, momentary in length, and were a very small part of a rather prosaic summation.’” (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982))); People v. Penn, 2016 CO 32, ¶ 33 (a brief and isolated statement did not constitute plain error).
¶ 48 Third, defense counsel did not ask the court to strike the witness’s testimony, to provide a curative instruction, or for
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permission to conduct recross-examination. This suggests that defense counsel did not view the testimony as overly damaging. See Domingo-Gomez, 125 P.3d at 1054.
¶ 49 Because the witness’s testimony did not undermine the fundamental fairness of Gilligan’s trial or cast serious doubt on the reliability of the judgment of conviction, it does not warrant reversal under plain error review.
V. Cumulative Error
¶ 50 Gilligan argues that the alleged errors collectively warrant reversal. “The doctrine of cumulative error requires that numerous errors be committed, not merely alleged.” People v. Conyac, 2014 COA 8M, ¶ 152. We found only one error related to admitted witness testimony and have rejected Gilligan’s remaining claims of error. Thus, the doctrine of cumulative error does not apply. See id.
VI. Disposition
¶ 51 The judgment of conviction is affirmed.
JUDGE FREYRE and JUDGE LUM concur.